Considered and decided by Lansing,
Presiding Judge, Shumaker, Judge, and Minge, Judge.

U N P U B L I S H
E D O P I N I O N

LANSING, Judge

On appeal from
an order denying his petition for postconviction relief, Christopher Hernandez
argues that the record contains insufficient evidence to corroborate accomplice testimony, that he did
not waive his right to testify, and that the postconviction court erred in
ruling that his four-and-a-half-year delay in filing the petition was grounds
for denying relief. The record provides
strong non-accomplice corroboration and minimal evidence that would weigh
against the presumption of a valid waiver of a testimonial right. Because the resolution of these issues
independently results in affirmance, we do not decide whether Hernandez’s delay
in filing precludes relief.

FACTS

In
an extended-jurisdiction juvenile prosecution, a jury found Christopher
Hernandez guilty of first-degree burglary involving a weapon. The facts supporting the verdict establish
that Hernandez and two other juveniles left a foster home in Scott County
around midnight and returned to the home a few hours later with a number of
items, including a handgun, that had been taken from two neighboring houses.

The
four juvenile males who lived at the foster home had been left in the care of
the adult daughter of the provider.
When the provider’s daughter left the downstairs area, Hernandez and two
of the other boys, M. and J., began drinking, using marijuana, and sniffing
gasoline. At that time, the fourth boy,
F., was in the living room watching TV.

While
J., M., and Hernandez were smoking and drinking, they discussed “going out” to
rob houses. F. testified that the other
boys asked him to “try to make something up” in case the provider’s daughter
came down to check on them while they were gone. F. agreed to do this but testified that the others made no
promises in exchange for his agreement.

J.,
M., and Hernandez then left the house, going first to a neighbor’s house, where
M. found a loaded handgun in the glove compartment of a car parked in the
garage. The boys stood outside and
looked at the gun and passed it around.
They then went to another neighbor’s house, where they took some
Nintendo games and other items and put them in a duffel bag.

When the three
boys returned to the provider’s home, F. was still watching TV. The provider’s
daughter had not come down to check on the boys while the three were away. The three boys showed F. the gun and the
contents of the bag, telling F. that he could have the video games. He played one of them but then said he did
not want them. M. later took the bag
and hid it above the ceiling tiles.

After F. left
the downstairs area, the other boys talked about selling the gun and splitting
the money. M. and Hernandez later sold
the gun for $100 and marijuana; they each received $50 and smoked the marijuana
together. A few days later, when the provider confronted F. about the video
games, he told her, “All I know is they had went out and robbed houses.”

At Hernandez’s
jury trial on burglary charges, F. was given immunity two days prior to
testifying. At the close of trial,
defense counsel argued that F. was an accomplice and that no evidence
corroborated F.’s testimony.

More than four
years after his conviction, Hernandez filed a petition for postconviction
relief, claiming that the conviction could not be sustained because the
accomplice testimony was insufficiently corroborated. He further argued that he had been denied the constitutional
right to testify on his own behalf because his counsel had told him not to
testify and had never advised him that it was his own decision. In an affidavit, he stated that at no time
did his counsel tell him that he could request that the jury be instructed not
to draw any adverse inference from his failure to testify. The court denied the petition for
postconviction relief, and this appeal followed.

D
E C I S I O N

I

We review a
postconviction court’s findings to determine whether there is sufficient
evidentiary support in the record. Dukes
v. State, 621 N.W.2d 246, 251 (Minn. 2001). In so doing, we defer to the postconviction court’s findings of
fact and will only reverse them if they are clearly erroneous. Id. A postconviction court’s decision will be upheld unless the court
abused its discretion. Townsend v.
State, 582 N.W.2d 225, 227 (Minn. 1998).

Hernandez argues
first that the postconviction court erred in concluding that F. was not an
accomplice. A defendant may not be
convicted solely on the testimony of an accomplice unless that testimony is
corroborated by other evidence. Minn.
Stat. § 634.04 (1996); State v. Pederson, 614 N.W. 2d 724, 732 (Minn.
2000). For purposes of the
corroboration requirement, a witness is an accomplice if the witness could have
been indicted and convicted for the charged offense. State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001). A person is criminally liable for a crime
committed by another if the person “intentionally aids, advises, hires,
counsels, or conspires with or otherwise procures the other to commit the
crime.” Minn. Stat. § 609.05, subd. 1
(1996).

Hernandez
contends that F. was an accomplice and that F.’s testimony was inherently
untrustworthy. But the record contains
no evidence that F. undertook any action which would make him directly liable
for the burglary, see Minn. Stat. § 609.582, subd. 1 (1996) (setting
forth elements of burglary in the first degree), or that he intentionally
aided, advised, hired, counseled, or conspired with or otherwise procured
Hernandez to commit the burglary.
Although F. knew that the other boys were leaving “to rob houses,” he
did not go with them or know where they were going. Instead, he stayed in the provider’s house watching TV and agreed
only to “make something up” if the provider’s daughter came down to check on
the boys. “[I]naction, mere knowledge,
or passive acquiescence do not satisfy the requirements for accomplice
liability.” State v. Arrendondo,
531 N.W.2d 841, 845 (Minn. 1995).
Although he later played one of the stolen video games, this is
insufficient to make him an accomplice; when offered ownership of the games, he
refused to take them. The district
court did not err in finding that F. was not an accomplice.

Nor did the
district court err in determining that F.’s testimony, together with other
non-accomplice evidence, was sufficient to corroborate the accomplice testimony
of J. and M. Although corroborating
evidence must connect the defendant to the crime, it need not establish a prima
facie case of the defendant’s guilt. State
v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988). Evidence is sufficient to corroborate if it confirms the truth of
the accomplice’s testimony and points, in some substantial degree, to the
defendant’s guilt. State v. Ford,
539 N.W.2d 214, 225 (Minn. 1995).
“Corroborating evidence includes evidence of a ‘defendant’s association
with those involved in the crime in such a way as to suggest joint
participation, as well as from the defendant’s opportunity and motive to commit
the crime and his proximity to the place where the crime was committed.’” Burns v. State, 621 N.W.2d 55, 60
(Minn. App. 2001) (quoting State v. Adams, 295 N.W.2d 527, 533 (Minn.
1980)), review denied (Minn. Feb. 21, 2001).

F. testified
that Hernandez left the provider’s house with the other boys immediately before
the burglaries were committed.
Hernandez returned with the two boys, one carrying a bag containing
stolen items. Hernandez’s opportunity
to commit the crime, together with his reappearance in the company of J. and
M., strongly suggests joint participation in the burglaries and points in a
substantial degree to his guilt.
Further, F.’s testimony corroborated M.’s testimony that M. and
Hernandez had sold the gun and split the proceeds evenly. Hernandez’s actions in selling the gun and
sharing in the burglary proceeds demonstrate culpable participation.

II

Hernandez
next argues that he did not knowingly and voluntarily waive his right to
testify. A criminal defendant has a
constitutional right to testify on his or her own behalf. State v. Walen, 563 N.W.2d 742, 751
(Minn. 1997). This right is personal
and may be waived only by the defendant.
State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979). As with other constitutional rights, the
waiver of the right to testify must be knowing and voluntary. Walen, 563 N.W.2d at 751. See In re Welfare of M.P.Y., 630
N.W.2d 411, 416 (Minn. 2001) (discussing waiver of constitutional right to
testify in EJJ proceeding). When the
district court record is silent as to waiver, the reviewing court “must presume that the decision not to
testify was made * * * voluntarily and intelligently.” State v. Smith, 299 N.W.2d 504, 506
(Minn. 1980).

The
petitioner at a postconviction hearing bears the burden of proving that the
waiver of his right to testify was not voluntary and knowing. Walen, 563 N.W.2d at 751. On review, this court is limited to
determining whether the record contains sufficient evidence to sustain the
findings of the postconviction court. See
Minn. Stat. § 509.04, subd. 3 (2000).

Because
the district court record is silent as to waiver, we presume that Hernandez’s
waiver was knowing and voluntary.
Hernandez has provided insufficient evidence to rebut that presumption. He told the postconviction court that his
counsel had told him not to testify and had never advised him that it was his
own decision. But he admitted that he
had consulted with his attorney, an experienced criminal-defense attorney,
about whether or not to testify. The
credibility of his lack-of-knowledge claim is diminished by his affidavit
statement that his counsel failed to inform him that he could request that the
jury be instructed to draw no adverse inferences from his failure to
testify. The record confirms that the
trial judge, who was also the postconviction judge, did give the jury a
no-adverse-inference instruction. The
postconviction court did not err in determining that Hernandez validly waived
his right to testify at trial.

Finally,
the district court considered Hernandez’s four-year delay in requesting
postconviction relief, noting the prejudice to the state in belated
postconviction appeals. Although a
timely request is not required by the postconviction statute, timeliness is a
factor in determining whether relief should be granted. Sykes v. State, 578 N.W.2d 807, 814
(Minn. App. 1998), review denied (Minn. July 16, 1998). But our decision to affirm the
postconviction court’s decision on other grounds makes consideration of this
issue unnecessary.